Abstract

There is at large in the United States today a singular notion. The idea has gained ground that the fourteenth amendment is a special foe of racial discrimination, that it forbids racial discrimination where it permits other types of discrimination. This notion has penetrated into some very high places. Its most common habitat is to be found in the proliferating "civil rights" acts of both the federal and state governments, which usually confine their ambit to a stock formula of race, creed, color, and national origin, with occasional references thrown in to age or sex. The first section of the fourteenth amendment mentions neither race nor religion. It guarantees the privileges and immunities of national citizenship to all citizens, and equal protection to all persons. Statutes singling out racial and religious discrimination for special condemnation, except in respect to voting, cannot justify themselves on the letter of the fourteenth amendment. Discrimination may be based on political grounds, on unpopularity of viewpoint, on occupation, on financial status, on looks, and on many other factors. The letter of the fourteenth amendment does not condemn one form of discrimination any more than any other. There is nothing about reasonableness of classification in its text. If one form of discrimination is a denial of privileges or equal protection all forms must be a similar denial. The terms of the amendment require that all discrimination be banned, or none. To protect one group and not another is not equal protection, but its converse.

It has been suggested that racial discrimination forms a special class to be particularly condemned. Since nothing in the text of the amendment supports this theory, if it has any validity it must be found in the historical origins of the amendment. This study will examine those origins to test the validity of the foregoing theory.

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